The Ninth Circuit’s November 5^th decision in Coastal Environmental Rights Foundation, v. Naples Restaurant Group, LLC exploded onto the scene -- deepening an existing circuit split on whether a Clean Water Act citizen suit stays alive based solely only civil penalties once the alleged wrongful conduct ceases.  Consistent with the Eighth Circuit, the Ninth Circuit answered this question in the negative in Naples Restaurant.  The Second, Third, Fourth, Seventh and Eleventh Circuits have previously answered the question in the affirmative.  Overall, the key takeaway is for parties to make sure they are cognizant of the prevailing rule in their Circuit, and to be prepared to raise or respond to the arguments implicated by the Naples Restaurant opinion.

“This case started with a bang several years ago, when an environmental group sued a restaurant and its owner over its annual Fourth of July fireworks show.”  The environmental group, Coastal Rights Foundation (“CERF”), brought a Clean Water Act (“CWA”) citizen suit alleging that the Naples Restaurant (“Naples”) violated the CWA for discharging pollutants (i.e., fireworks) into water of the United States without a permit.  Due to Naples’s alleged CWA violations, CERF sought declarative and injunctive relief, civil penalties, and attorneys’ fees.  However, during the pendency of the action the Los Angeles Region of the California Regional Water Quality Control Board (the “Board”) began issuing National Pollutant Discharge Elimination System (“NPDES”) permits for public fireworks shows over Los Angeles waters.  In turn, Naples promptly received the newly issued NPDES permit, raising the question of whether the suit was now moot.

The Court’s Decision
On November 5, 2025, Circuit Judge Patrick Bumatay, writing for the Ninth Circuit, explained that CERF’s citizen suit under 33 U.S.C. 1365 was indeed moot.  Relying first on the Supreme Court’s guidance in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., Judge Bumatay explained that the CWA’s citizen suit provision only “authorizes suits to abate ongoing or future violations” not “wholly past violations.”  Therefore, for mootness purposes, once it is “absolutely clear that the alleged wrongful behavior could not be reasonably expected to recur” the citizen suit is moot.  Judge Bumatay then turned to another Supreme Court case, Friends of the Earth, Inc., v. Laidlaw Environmental Services, for guidance on how civil penalties impact mootness.  The Court ultimately extracted three principles from these cases that animated the Court’s opinion.  First, that “the touchstone for civil penalties under the Clean Water Act is deterrence.”  Second, that “to establish mootness, the defendant bears a heavy burden to show that it’s absolutely clear that past violations could not reasonably be expected to recur.”  Third, that “when there is no reasonably possibility of a future violation, civil penalties lose their deterrent effect and become moot.”

With these principles in mind, Judge Bumatay analyzed each of CERF’s requests for relief (i.e., declaration and injunctive relief, civil penalties, and attorneys’ fees), finding that each did not save the case.  Initially, the Court determined that CERF’s request for declaratory and injunctive relief was moot because after obtaining the NPDES permit Naples could no longer violate the CWA by discharging pollutants into waters without a permit nor was there any reasonable basis to believe that Naples’s violations would recur.

Next, the Court turned to the trickier question of whether CERF’s request for civil penalties provided CERF with adequate relief to survive mootness.  The Ninth Circuit, siding with the Eighth Circuit, concluded that civil penalty claims are mooted when “it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”  Indeed, in such circumstances, the Court reasoned, the deterrence effect of civil penalties is lost.  The Ninth Circuit determined the suit was mooted because the alleged wrongful behavior was not reasonably expected to recur after Naples obtain the requisite NPDES permit.

Finally, relying on the general principle that attorney fees alone cannot be the basis for a “case and controversy,” Judge Bumatay noted that CERF’s attorneys’ fees request was not enough to “resuscitate an otherwise-moot case.”

Takeaways
As the Naples Restaurant case highlights, there is currently a circuit split on whether a CWA citizen suit can survive mootness solely based on a request for civil penalties.  This requires parties to be cognizant of the prevailing rule in their circuit when preparing to argue or defend against mootness argument. 

Additionally, if a party finds themselves in the Second, Third, Fourth, Seventh and Eleventh Circuits, the Naples Restaurant opinion raises a strong argument to overturn the existing precedent.  In particular, the Ninth Circuit highlighted that it followed the Eighth Circuit’s opinion, in part, because it was the only opinion that came after Laidlaw.  And, notably, the Eighth Circuit found that Laidlaw overturned the other circuits’ relevant precedents “at least in part, by equating citizen suit claims for civil penalties and claims for injunctive relief for mootness purposes.”  Laidlaw, therefore, can be used push back on the Second, Third, Fourth, Seventh and Eleventh Circuits’ existing rule. 

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